The independence of the judiciary is generally regarded as being an essential component of democratic government. There should be no doubt about this. It is spelt out in our Constitution, which gives effect to internationally accepted principles.
First, “the judicial authority [vests] in the courts”. Not in the government, not in any political party, not in any trade union, not in any organ of civil society and not in any disgruntled litigant.
Second, that authority must be exercised by the courts in accordance with the law. Not in accordance with the dictates of the government or any political party, trade union, organ of civil society or litigant.
Third, the law must be applied “impartially and without fear, favour or prejudice”. This means that the law must be applied equally, irrespective of who the litigants are; and, when the law requires this to be done, courts must rule against the government and powerful figures in society.
Fourth, there must be no attempt to interfere with the decision of a case. This has long been considered one of the core principles of judicial independence.
No outsider — be it government, pressure group, individual or even another judge — should interfere in fact, or attempt to interfere, with the way in which a judge conducts his or her case and makes his or her decision. This is central to the principle of judicial independence.
In the light of the clear wording of the Constitution, no one should have been in any doubt about what it requires. Yet judges of the Constitutional Court have been pilloried for reporting to the Judicial Service Commission a judge said to have attempted to interfere with the way judges of that court should make their decision in pending cases concerning the president of the ANC. Somehow that has been wrenched from its content and context to be made the basis of an allegation that the judges of the Constitutional Court are prejudiced against the ANC and its president.
A more reasoned statement about these issues was made by the ANC’s deputy president in ANC Today. I take this to be the official position of the ANC on this issue. After making the point that the ANC is entitled to show support for its leader, he goes on to say: “The ANC’s position on the case brought against Jacob Zuma — is informed by the very same principles that underpin our democracy, and by the need to build a society founded on a democratic Constitution, in which there is an independent, impartial and fair judiciary that safeguards the rights and interest of all people.
This remains an ongoing challenge. While we have put in place the fundamental laws and the necessary constitutional provisions for the existence of such a judicial system, there is much that still needs transformation. Matters of composition, representivity, cultural bias and language remain concerns. As does the crucial question of improving access [to] the law for the poor and the vulnerable. It is for these reasons that the ANC will consistently strive to uphold and defend the integrity and credibility of the judiciary and other institutions of state. Even if this means publicly raising concerns about members of such institutions who through their own actions undermine the integrity of the bodies in which they serve.
It is important to remember that these institutions do not belong to the individuals who serve in them. They belong to the people, and those who currently occupy important positions in such institutions cannot take lightly the responsibility that the people have placed on their shoulders.
“There is for instance no contradiction between the need to safeguard the integrity of the Constitutional Court and the right of any individual or organisation to criticise the manner in which the judges of the court conduct themselves. It is important that while there is vibrant public debate on such matters, we should allow the appropriate processes to run their course without any undue external influence. The ANC maintains, for example, that the complaint laid by the Constitutional Court against Cape Judge President John Hlophe should be left to the Judicial Service Commission to deal with.”
There are four critical propositions in this statement:
(1) An affirmation of the importance of our democratic Constitution and its commitment to “an independent, impartial and fair judiciary that safeguards the rights and interests of all people”. I agree. I welcome this statement.
(2) “There is much [in the judicial system] that still needs transformation.” That may be so, but it has no relevance to the attacks upon the Constitutional Court. None of the 11 judges of the court held judicial office under apartheid. Eight of them are black. All have strong credentials in the struggle against apartheid and for human rights and freedom; all have a deep concern for “improving access to the law for the poor and the vulnerable”. Their judgements show they have remained true to these concerns.
(3) Then there is a commitment that the ANC will “uphold and defend the integrity and credibility of the judiciary and other institutions of state”. I welcome that commitment. But it is meaningless unless it is implemented when necessary.
(4) “Those who currently occupy important positions in [our] institutions cannot take lightly [their] responsibility.” I agree, and that goes as well for all who exercise political power. Recklessly to undermine the standing and integrity of the highest court in the country for a short-term political gain is a negation of that responsibility.
As for the courts, the responsibility of the judges is defined in the Constitution. It is to apply the law impartially. I can say without any reservation that this is what the Constitutional Court has always done. This does not mean that everyone must agree with its judgements; it does mean, however, that its judgements bind all to whom they apply.
(5) Finally, “Any individual or organisation” has the right “to criticise the manner in which judges of the [Constitutional] Court conduct themselves.” I agree that all judges, including judges of the Constitutional Court, have a duty to conduct themselves in ways befitting their office, and that criticism of judges and their judgements is not in itself inconsistent with judicial independence. Yet criticism that amounts to an unwarranted attack upon the integrity of the court, made with the stridency and the intensity we have recently witnessed, is potentially harmful to our democracy. It demeans the courts, deters persons of integrity and competence from making themselves available for judicial office, undermines one of the pillars of our democracy and, if allowed to continue, can lead to irreparable harm.
(6) Finally, the importance of allowing “appropriate processes to run their course without any undue external influence”. That holds good, not only for the proceedings against Judge President Hlophe, but for all cases, including the case against the president of the ANC. The time has come to allow that process to run its course.
This is an edited version of comments made by Justice Arthur Chaskalson at the Gordon Institute for Business Science Forum